Aux Armes, Citoyens!

M

MLipton

Mark Lipton
For those of you ITB, this is probably old news, but Eric Asimov recently posted an update about the upcoming SCOTUS case Tennessee Wine and Spirits Retailers Association v. Blair, in which the Supremes will take on the issue of whether states can legally bar interstate wine sales by retailers. For those of you in major metropolitan areas, this may not be so earth-shattering but for those of us in flyover country it has absolutely enormous ramifications. I wonder if it's too late to file an amicus brief?

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www.nytimes.com

Mark Lipton
 
originally posted by MLipton:
Aux Armes, Citoyens!For those of you ITB, this is probably old news, but Eric Asimov recently posted an update about the upcoming SCOTUS case Tennessee Wine and Spirits Retailers Association v. Blair, in which the Supremes will take on the issue of whether states can legally bar interstate wine sales by retailers. For those of you in major metropolitan areas, this may not be so earth-shattering but for those of us in flyover country it has absolutely enormous ramifications. I wonder if it's too late to file an amicus brief?

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www.nytimes.com

Mark Lipton
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Too late. Oral argument is Wed. There is a consumer brief on the indirect effect on in-state consumers.

Asimov is very obviously writing as a journalist, not a legal scholar. We’ll see what happens and how narrow or broad the ultimate decision is. The statute was factually created to burden out of staters when originally enacted. So we’ll see.
 
originally posted by MLipton:
in which the Supremes will take on the issue of whether states can legally bar interstate wine sales by retailers
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Ugh, did they really report that? This is absolutely *not* what the case is about. It's about a challenge to a statute requiring a period of in-state residency to get a retail license. It's unlikely the court will reach any result sweeping enough to affect interstate retail sales one way or the other, although it's true one of the parties stupidly included a loser argument in their brief asking the court to overrule the Granholm case.
 
The Asimov story was pretty clear about the central issue of the case regarding the regulations for getting a retail license. He is hardly the only one who thinks that the issue of interstate shipping could arise in the ruling, though you could easily be correct that the court will decide only on the issue directly before it.
 
originally posted by Jonathan Loesberg:
The Asimov story was pretty clear about the central issue of the case regarding the regulations for getting a retail license. He is hardly the only one who thinks that the issue of interstate shipping arise in the ruling, though you could easily be correct that the court will decide only on the issue directly before it.
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A conservative court doing its job correctly, which the SC often is, will reserve any question of the key issue for us of whether a (specific) state statute may prevent shipment of wine from out of state retailers to in-state consumers. As Keith rightly points out, it’s not the issue. OTOH there are several cases currently that raise the issue directly. See, e.g., https://www.winespectator.com/webfe...verturns-Ban-on-Wine-Retailer-Direct-Shipping.
 
I don't believe anyone is actually arguing that interstate shipping is the issue in the case before the court, only that overturning such regulations might be a consequence of a ruling in favor of the retailer and against state regulations against out of state retailers. I agree with you that, under Roberts, the court has shown a preference for narrow rulings, but that doesn't make the Asimov article deceptive, only unduly hopeful.
 
originally posted by Jonathan Loesberg:
I don't believe anyone is actually arguing that interstate shipping is the issue in the case before the court, only that overturning such regulations might be a consequence of a ruling in favor of the retailer and against state regulations against out of state retailers. I agree with you that, under Roberts, the court has shown a preference for narrow rulings, but that doesn't make the Asimov article deceptive, only unduly hopeful.
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Hopeful for sure. What we all want is a ruling that Granholm’s non-discrimination principle relating to wineries applies to retailers. Maybe that will happen. Or maybe the SC won’t decide that as a general principle. Or maybe they will reject it. Or maybe they will say Granholm is not implicated. We will see.
 
Here's the argument https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-96_i4ek.pdf
You could (and I would) argue that the Granholm case left only one way to connect the dots on the legality of interstate retail shipping. But this case really doesn't look very likely to bear on that question. That seems particularly so when you get to the portions of the transcript where some of the justices finally reference the actual text of the 21st amendment. The argument goes that the 21st amendment only permits state restrictions on "transportation or importation" of alcohol for purposes of "delivery and use," but the challenged statute is purporting to regulate "delivery and use," NOT "transportation or importation." If the case turns on that (and I think I'm persuaded that it should), then the result won't control any future disputes about "transportation and importation."
 
I expect you're right that they are looking for a narrow ruling. But Kavanaugh's question, as he posed it, has wider consequences. He interpreted the transportation and importation phrase as giving the states the right whether to allow alcohol in or not but not whether to regulate who can ship or not. It's pretty clear that they were considering the larger question of interstate shipping, even as they were trying to avoid it.
 
Right, but none of that changes the fact that this case isn't about shipping. It just may be that whatever principle it relies on can be relied on just as easily to decide the retail shipping issue, but that doesn't get you the result you want on the retail shipping issue until someone else brings *another* case and gets a court to agree - which is exactly the same state the law has been in since Granholm. That's my point here - not to expect this to do anything Granholm didn't do so far as shipping is concerned.

If that seems strange, just look at Granholm. There you had a clear holding from the Supreme Court that:

"States have broad power to regulate liquor under §2 of the Twenty-first Amendment. This power, however, does not allow States to ban, or severely limit, the direct shipment of out-of-state wine while simultaneously authorizing direct shipment by in-state producers. If a State chooses to allow direct shipment of wine, it must do so on evenhanded terms."

Now you could argue that the rule that "if a State chooses to allow direct shipment of wine, it must do so on evenhanded terms" is broad enough that it applies to restrictions on retail sales just as clearly as it applies to restrictions on winery-direct sales. But some states obviously feel differently and their interstate retail shipping bans are still on the books. If you want to get them overturned, you have to sue and argue that the issue is controlled by Granholm.

Likewise, suppose the Supreme Court decides here something along the lines of:

"States have broad power to regulate liquor under §2 of the Twenty-first Amendment - but only so far as those regulations concern 'transportation or importation.' As the instant regulation concerns neither, it is not immune from scrutiny under the dormant commerce clause."

Great, that's a win! And it holds the dormant commerce clause applicable to the retail tier, not just the producer tier. So that means all those interstate shipping bans have to come down, too, right? well, no. It means you have to litigate it. Maybe those bans are still okay as regulations of transportation or importation, or maybe the issue is controlled by Granholm's holding that even restrictions on transportation and importation have to be on evenhanded terms.

Now, of course, there is no rule of law or particle physics that precludes the Court from going wild with a ruling along the lines of:

"States have broad power to regulate liquor under §2 of the Twenty-first Amendment - but only to the extent of banning or allowing its importation or transportation, not regulating retail sales."

but. that. ain't. gonna. happen.
 
I don't disagree with you, nor have I ever. I have just been saying that the Asimov article hoping for a ruling on shipping was not without any basis at all.
 
God knows, I don't see eye to eye with Keith on methods of legal interpretation, but that response seems pretty arrant know-nothingism. Would you rather that judges didn't try to interpret the laws before them but just decided to do whatever they want? Isn't that what conservatives complain liberal rulings do and liberals complain conservative rulings do? The interesting thing about this case is that it has no obvious ideologically preferred outcome (unless you are a wine buyer or a state liquor board) and so one can see something like what Roberts claims happens all the time actually happening.
 
originally posted by Jonathan Loesberg:
Would you rather that judges didn't try to interpret the laws before them but just decided to do whatever they want?
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Heavens know. But can laws solve mankind's problems?
 
originally posted by MarkS:
originally posted by Jonathan Loesberg:
Would you rather that judges didn't try to interpret the laws before them but just decided to do whatever they want?
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Heavens know. But can laws solve mankind's problems?
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Do you mean "Heaven knows," or "heavens, no"?

No one ever thought they could. But many of those problems would be much worse without them. Would you rather live in a Hobbesian state of nature?
 
There is, btw, one way I can see this moving the ball forward on the interstate retail shipping issue, though not so far forward as to actually resolve it. The problem with the Granholm case is that it only goes so far as addressing discrimination against out-of-state *products*. The reason a CA winery has a constitutional right to ship its products to any state but a CA retailer doesn't isn't because one is a winery and one is a retailer, but because Granholm deemed it illegal to discriminate against California wine, not necessarily illegal to discriminate against Californians.

The protectionist interests in the current case are asking the court to hold that state laws are immune from dormant commerce clause* scrutiny as long as they treat in-state and out-of-state products the same. The retailers are asking the court to hold that the dormant commerce clause protects out-of-state interests, not just out-of-state products. The retailers are plainly right about that because the 1968 Brown-Forman case (as quoted in Granholm) *already* used the "interests" language to describe the scope of the dormant commerce clause and wasn't limited in scope to products. The court will probably have to decide that either the protectionists or the retailers are wrong on this point, and it'll almost certainly do so in a way that's in line with what it already said in 1968. So that doesn't really change the playing field but I guess you can count that as a small kick in the tush towards the idea that Granholm should be construed to protect out-of-state interests, not just out-of-state products.

* The commerce clause is the provision of the Constitution that gives Congress the power to regulate interstate commerce. The "dormant commerce clause" is an expression of the idea that if Congress has the power to regulate interstate commerce, it follows that the states don't. In 2000, 7th Circuit Judge Easterbrook wrote an opinion upholding an interstate shipping ban that opened: "This case pits the twenty-first amendment, which appears in the Constitution, against the 'dormant commerce clause,' which does not." That overstated things, but what a great turn of phrase. Ditto on this passage: "Let us start with injury in fact. Before Indiana enacted § 7.1-5-11-1.5 many vintners shipped wine direct to the plaintiffs from California and other states, and they stopped as soon as § 7.1-5-11-1.5 took effect. Some of the wines plaintiffs want to drink are not carried by Indiana resellers. That establishes injury in fact. Anyone who has held a bottle of Grange Hermitage in one hand and a broken corkscrew in the other knows this to be a palpable injury."
 
originally posted by Jonathan Loesberg:
originally posted by MarkS:
originally posted by Jonathan Loesberg:
Would you rather that judges didn't try to interpret the laws before them but just decided to do whatever they want?
Click to expand...

Heavens know. But can laws solve mankind's problems?
Click to expand...

Do you mean "Heaven knows," or "heavens, no"?
Click to expand...

I'll leave it for the lawyers here to interpret.

originally posted by Jonathan Loesberg:

Would you rather live in a Hobbesian state of nature?
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Ants can move in surprising ways to get things done (like attack enemies, gather food, build homes) as a group that works together, but individually, to accomplish their goals. Imagine if humans could put their heads and obvious advantages together to solve some of our greatest problems.
 
originally written by Judge Frank H. Esterbrook of the 7th Circuit Court of Appeals:
"Anyone who has held a bottle of Grange Hermitage in one hand and a broken corkscrew in the other knows this to be a palpable injury."
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That would depend on the vintage, Your Honor. Incidentally, I broke a bottle of 2004 Breton Chinon Picasses last month, but did not know in which court to sue myself, for it was injury in fact.
 
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